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May 15, 2013

Sample assumptions for defining scope (Part 2 of 2)

This post was adapted from the new Third Edition of the Legal Project Management Quick Reference Guide. It was written by Steve Barrett, Mike Egnatchik, and Jim Hassett.


Scope assumptions

  • Based on the attached breakdown of work, we will analyze the legal and factual issues presented by the complaint (including preliminary witness interviews), prepare a memorandum of law in support of a motion to dismiss, analyze ABC’s opposition brief, and prepare for and argue the motion for a budgeted cost not to exceed $XX in legal fees

  • Alternate Dispute Resolution (ADR): If we determine to pursue ADR, the budget includes preparation and participation in mediation. The budgeted number assumes a one- to three-day mediation session, the negotiation of a settlement agreement, and limited discovery.

  • Fact investigation and development: The budget includes preparing for a case management conference, making initial disclosures, propounding and responding to discovery requests, preparing documents for production and reviewing produced documents, negotiating a confidentiality agreement, and preparing for and attending fact depositions


Discovery budget assumptions

  • To the extent mediation is unsuccessful, the case will move into the discovery phase. For budget planning purposes, we have further divided this phase into the following three parts: (i) pre-trial planning, (ii) offensive discovery, and (iii) defensive discovery. Our estimated cost for the entire discovery phase is $XX. 

  • A breakdown of this estimate is set forth on the attached spreadsheet. There are several key assumptions in this cost estimate, including: (i) each side will depose no more than five witnesses; (ii) all discovery disputes (if any) will be resolved without court intervention; and (iii) we will not seek third party discovery. These assumptions are reasonable in light of the circumstances of this case; however a change in circumstances may impact the estimated costs.

  • Expert Discovery: The budget includes preparation of expert reports and rebuttal reports (we currently estimate a total of three reports to cover the issues of infringement, patent validity, and damages) and preparing for and attending expert depositions. This budget does not include any fees for experts.

  • Document Review: All required documents are readily accessible and in a machine readable and searchable electronic format. If a significant fraction of the documents are available ONLY in hard copy format, client agrees to reimburse firm for converting the material into readable/searchable electronic form. If such conversion is not possible, or if documents are damaged beyond acceptable scanning standards, the firm and client will negotiate a formula for their manual review.

  • Case preparation includes:
    •  Analysis of complaint and motion to dismiss

    • Factual investigation

    • Preparation of discovery requests and review of discovery responses by opponents

    • Motion to compel discovery (assumes one such motion)

    • Review of documents produced by the other side (assumes opponent’s production is XX pages)

    • Responding to opponent discovery requests

    • Review and production of our documents (assumes production is XX pages)

    • Responding to the opponent’s motion to compel (assumes one such motion)

    • Preparing our witnesses to be deposed (assumes XX witnesses)

    • Preparing for and taking opposition depositions (assumes XX depositions)

Transaction budget assumption

For purposes of the fee proposed, we have made the following assumptions:

  • The target does not have any material or significant legal/regulatory issues that necessitate material or significant changes to the transaction structure or require extensive additional due diligence

  • Opposing counsel is sophisticated and knowledgeable in these matters

  • Negotiations will take place in [insert city]

  • Transaction documents will be executed within XX weeks and the transaction will close within XX weeks from the time of engagement of our firm for the transaction

  • Each transaction document will be “turned” in three passes or less

  • Diligence documents will be provided electronically or delivered to our firm’s XX office 

  • A tax diligence and opinion letter will be delivered by ___ or another leading accounting firm to be mutually agreed upon


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